Your Ex is Moving Out of State With Child | Custody Issues

Child custody becomes extremely contentious when an ex spouse wants to move out of state with your child. Is this legal? Can they do that? This page details the rules that should be followed when moving with children to avoid child custody issues. It also details the legal ramifications and options if your spouse wants to leave the state with your children.

After divorce, if both parents are given joint physical custody and one parent does not agree to let the child move out of state, a judge will have to get involved. Sharing physical custody with the other parent can be easy if both parents live next to each other, but when one parent crosses the state line things can get complicated. This webpage will cover the following topics regarding moving out of state with a child:

  • Child Custody Overview
  • Child Relocation Laws in California
  • Non-custodial Parent’s Responsibility to Burden of Proof
  • Visitation Schedule and Modifying Child Custody Orders
  • Is Getting the Court Involved Necessary when Moving Out of State with a Child?
  • Should You Hire a Family Attorney?

When moving out of state with a child you should contact a lawyer. Reading this page is not legal advice and is not a substitute for speaking with an experienced family law attorney. If your ex is moving out of state with your child you should call a lawyer immediately.

Child Custody Overview

When two parents are separated, they must agree on how to raise their child. If they cannot agree on the custody arrangements on their own, the court will issue an order and decide who has what kind of custody over the child. There are several variations and types of child custody.

The two types of custody that can be given are legal and physical custody. Our main child custody page details these types in detail. Basically, legal custody allows one or both parents to make important decisions for the child; things pertaining to their education, welfare, and health. Physical custody, on the other hand, refers to the parents’ rights and responsibilities of taking care of the child, such as where the child lives and being involved in the child’s daily routine (Meals, hygiene, going to school, going to soccer games, etc.).

Visitation rights are also a complicated subject. Visit our visitation page for more information.

Basically, after custody is decided or agreed upon, a deviation from that plan may cause serious complications. Whether one or both parents have physical custody of the child, if one parent doesn’t agree on the move out of state, the parents will likely have to go to court for hearing. Oftentimes, move-away cases are some of the most difficult cases heard in family courts.

Child Relocation | Moving Out of State with Child Laws in California

The laws on child relocation are complicated and change often. It’s best if you hire a family lawyer to help you through this process if you want to move out of state or if your ex wants to move away with your child. Below are a few scenarios involving the laws of moving a child out of state:

  • One parent is given permanent sole physical custody[1]. He/she can move out of state with the child or children. However, if the other parent can prove that the move with harm the children then a judge will need to hear the case. It’s not always clear when a child custody case is temporary or permanent though, so working with a lawyer will help you fully understand your rights as a parent.
  • Both parents have joint physical custody of the child, but one parent doesn’t want the child to move. The parent that is wanting to move away has to show the court that the move is in the best interest of the child or children.
  • If both parents have joint physical custody of the child and they both agree on the move, then the child is free to go with the moving parent.

Ex Moving Out of State with Child | Family Law Attorney

Non-Custodial Parent’s Responsibility to Burden of Proof When Ex is Moving Out of State with Child

If you are a non-custodial parent and your ex is moving away with your child, you have the right to contest and request a modification of child custody. Just because the other parent has sole physical custody, it doesn’t mean that your parental rights are gone. The substantial burden to provide proof of significant life changes is on the non-custodial parent.

The proof that needs to be brought to court is the showing of changed circumstances that could be detrimental to the child. In this case, it would be moving away.

One instance in which moving away would be detrimental to the child is if the child has Down Syndrome. Taking the child away from familiarity and his/her routine would be detrimental to the child. Of course, not all family circumstances are the same. The court must determine whether a change in custody is necessary and in the best interest of the child. Osgood v. Landon

Custodial Parent’s Responsibility to Provide Good Faith Burden of Proof

As the custodial parent that is planning to move away with the child, you must provide good faith burden of proof. This means that you need to show the court why moving with the child will be good or better for the child and not be detrimental.

Good faith reasons include:

  • Better living costs
  • Being closer to relatives to help you provide care for the child
  • You’ve been offered a new job[2]
  • You’re continuing your education
  • You’ve remarried

The judge will look at these reasons, but it is up to him or her to decide if these reasons are good enough and that the child will be able to have a good environment to grow up in. If a parent is moving away just to get away from the ex-spouse, that is not a good reason. It’s important that the child has a fair opportunity to build good relationships with both parents.

Is Getting the Court Involved Necessary When Moving Out of State with a Child?

If both parents can agree on the move, there is no need for the court to get involved. However, when one parent disagrees with the move and it can’t be resolved between the parents, the court will need to get involved[3]. Generally, there are two tests that a judge will look at:

  • Is the move in the child’s best interest?
  • Does the move have a legitimately good reason?

If your ex has already moved out of the state with your child, and you want to bring your kid back home, does CA even have the jurisdiction to bring the child back? That depends. Read this child custody jurisdiction law page for more information. You should also learn about how to prevent parental alienation.

Should You Hire an Attorney?

You should hire a custody attorney if you and your ex-spouse cannot come to an agreement, either on your own or through mediation. Going to court for a move-away case is extremely challenging and can get very complicated. When moving out of state with child a lot is at stake, so you’ll want to make sure you have someone who can represent you and guide you with your and your child’s best interest in mind. Contact our family lawyer to get a consultation regarding your ex moving out of state with your child.

Footnotes:

[1] Family Law Code § 7501

[2] In re Marriage of Burgess

[3] Family Law Code § 3185